A recent decision of the Full Court concerns issues arising from a Binding Financial Agreement where a couple enters into such an agreement (before the relationship or during a relationship), and one of the parties have limited or no capacity in either speaking, reading and/or understanding English.
It is clear from this case that extra caution and care should be exercised by the respective legal advisors to ensure that the Agreement has the best possible chance of remaining binding in the event of any future separation.
It is important that mandatory advice by an independent lawyer is given to the parties with respect to the following:-
- The effect of the Agreement with respect to the rights of the parties, and the advantages and disadvantages at the time the advice was provided and;
- Before or after signing the Agreement, the spouse was provided with a signed statement of the practitioner stating the advice referred to above.
As the Agreements are in writing, and are usually quite lengthy and complicated, it goes without saying that specific care should be taken where one party cannot read English and may have difficulty in understanding not only the terms of the document, but also the nature and effect of the advice provided by the solicitor.
It is important in these matters that the solicitor ensures that the advice is given and understood by the party. It would be recommended that advice be given verbally and in writing.
Further, it would be recommended that an interpreter be engaged and the interpreter and solicitor be in the room at the same time. The solicitor would need to provide the written advice and verbally confirm the advice prior to the parties signing the Agreement. The interpreter would also need to be present during the giving of the advice and the signing of the Agreement to ensure that the party fully understood the terms of the Agreement.
It is also recommended (if possible), that the document be translated into the party's native language and the party have the opportunity to get that translation certified by the interpreter and that also be read by the party and annexed to the Agreement.
Detailed file notes and recordings should be kept of the above process leading up to the signing of the Agreement.
If you are wishing to have your spouse, intended spouse or partner sign a Binding Financial Agreement, and you have concerns about their ability to fully understand and appreciate English, then you can achieve a Binding Financial Agreement by ensuring that lawyers for each of the parties approach the matter with a greater deal of care and diligence.
All parties will need to assist and ensure that the party who cannot speak, read and/or understand English (as their first language) is fully informed and fully understands the nature and the effect of signing the Agreement.